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United States Sentencing Commissionin formulating the guidelines that should result in a sentence” outside of the applicablerange.20 Departures from the range were limited in order to reflect Congress’s desire forgeneral uniformity in sentencing of similarly situated offenders, without consideration ofseveral offender characteristics deemed irrelevant to the sentencing decision, including“socio-economic status.”21In 1987, the original Commission responded to Congress’s directives in the SRA withthe first Guidelines Manual containing a detailed set of guidelines and policy statementsthat included a sentencing table (discussed infra in Part V.B.5) with much narrowersentencing ranges than the larger statutory sentencing ranges governing federal crimes.22For instance, in a bank robbery case in which the indictment does not allege that thedefendant used a dangerous weapon, the statutory range of punishment is zero to 20 years,while a typical guideline range in such a case is much narrower (e.g., 78-97 months).23In 2005, in United States v. Booker,24 the Supreme Court declared that the existingguideline system violated the Constitution by permitting judges to find facts that raisedthe guideline range by a preponderance of the evidence (as opposed to juries making suchfindings beyond a reasonable doubt). The Court in Booker remedied the constitutionaldefect by striking the provisions of the SRA that made the guidelines “mandatory;” theresult was a judicially modified guideline system that the Court described as “effectivelyadvisory.”25 After Booker, courts use a three-step process—discussed below in Part IV.B.—in which they properly calculate and consider the guidelines as well as any relevantpolicy statements, along with the other five statutory factors in 18 U.S.C. § 3553(a) (setforth above), in deciding what sentence to impose within the broader statutory range ofpunishment.26The Court repeatedly has stressed that the advisory guidelines remain the “startingpoint and the initial benchmark” in the federal sentencing process and, moreover, “districtcourts must . . . remain cognizant of them throughout the sentencing process.”27 As theCourt has stated, “[t]hese requirements mean that in the usual sentencing . . . the judgewill . . . impose a sentence within [the applicable] guidelines range,” as such range is “theFederal Government’s authoritative view of the appropriate sentence for specific crimes.”28“The Booker remedy, while not the system Congress enacted [in 1984], was designed tocontinue to move sentencing in Congress’s preferred direction, helping to avoid excessivesentencing disparities while maintaining flexibility sufficient to individualize sentenceswhere necessary.”29Consistent with the Court’s description of the role of the guidelines after Booker, theguidelines have proved to be “the lodestone of sentencing” in federal court.30 Sentencingdata since 2005 show that, although the “within-range” rate of sentences has decreased,it has remained steady, at around 50 percent of cases, in recent years.31 It is also notablethat, of those cases in which below-range sentences are imposed, around 40 percent ofthem are the result of grounds for downward departure specifically recognized by theGuidelines Manual, including for defendants’ “substantial assistance to the authorities”or guilty pleas pursuant to an “Early Disposition” Program (departures discussed infra in4

Federal Sentencing: The Basics – 2018Part V.D.).32 Moreover, the average sentence imposed for all cases has closely tracked theaverage guideline range—both before and after Booker.33According to a 2014 survey of federal district judges, most judges believed thatthe guidelines generally increased certainty and fairness in meeting the purposes ofpunishment and reduced unwarranted sentencing disparities. A majority of judges alsofavored the current guideline system over alternative systems.34By 2018, over 1.8 million defendants had been sentenced under the guidelines.35 Therealso have been tens of thousands of federal appeals involving the guidelines and nearlythree dozen Supreme Court decisions concerning the guidelines. It is no exaggeration tosay that the guidelines are a central feature of the federal criminal justice system.III. Overview of the Federal Sentencing ProcessThe federal sentencing process typically begins well before the formal imposition of asentence. It involves a lengthy adversarial process that revolves around the presentencereport (PSR), which includes a proposed application of the sentencing guidelines. At thesentencing hearing, the court must resolve any objections to the PSR and also engage inthe “Booker three-step process” in accordance with 18 U.S.C. § 3553.A. Guilty Pleas and Plea BargainsFor the overwhelming majority of federal defendants, the sentencing process actuallybegins before the formal sentencing phase of the case. In recent years, 97 percent of federaldefendants convicted of a felony or Class A misdemeanor offense are adjudicated guiltybased on a guilty plea rather than on a verdict at a trial.36 As a result, in a typical caseinvolving a guilty plea, some but not all of the facts relevant to sentencing are establishedat the guilty plea hearing. Although a “factual basis” for the specific offense or offensesto which the defendant pleads guilty is provided to the court,37 a more complete recitationof the relevant sentencing facts usually is contained in a subsequent PSR (discussed infrain Part III.C.).At the guilty plea hearing, the court must advise the defendant of not only the statutoryrange of punishment but also “the court’s obligation to calculate the applicable sentencingguideline range and to consider that range, possible departures under the SentencingGuidelines, and other sentencing factors under 18 U.S.C. § 3553(a).”38 Many defendantswho plead guilty do so as the result of plea agreement with the prosecution, and someplea agreements contain the parties’ agreement about the application of the sentencingguidelines in the defendant’s case.39Unlike civil cases, where district judges may participate in settlement discussions,a judge in a federal criminal case “must not participate in [plea bargain] discussions”between the parties, although the “parties must disclose the plea agreement in open courtwhen the plea is offered . . . .”40 The court must decide whether to accept or reject the5

United States Sentencing Commissionproposed plea agreement, including whether to be bound by any plea agreement pursuant toRule 11(c)(1)(C) that specifies a particular sentence. To the extent that a plea agreementcontains “stipulations relevant to sentencing,” such stipulations must not be misleading andinstead must “set forth the relevant facts and circumstances of the actual offense conduct.”41The Commission “recommends that the court defer acceptance of the plea agreement untilthe court has reviewed the presentence report,” which typically is prepared after the guiltyplea hearing and which often will provide a more fulsome recitation of the facts relevant tothe sentencing guidelines calculation and the other § 3553(a) factors.42B. Presentence InterviewAfter a defendant is convicted, whether by way of a guilty plea or a verdict at trial, afederal probation officer typically conducts a presentence interview of the defendant. Atthe presentence interview, the probation officer may ask questions about a wide variety ofmatters concerning the defendant’s offense or offenses of conviction and related unchargedcriminal conduct, criminal history, personal history (including family history and substanceabuse history), financial circumstances, and numerous other issues potentially related tothe court’s sentencing decision.43Counsel for the defendant must be given notice of and the opportunity to attendthe presentence interview.44 A defendant may invoke his or her constitutional right toremain silent during the interview,45 although failure to provide truthful informationabout the offense or offenses of conviction may result in denial of credit for “acceptance ofresponsibility”46 at sentencing47 (an issue discussed infra in Part V.B.3.).C. Presentence Report and ObjectionsAfter conducting the presentence interview as well as an independent investigation ofthe offense and the defendant’s background, the probation officer prepares a PSR.48 The PSRcontains not only information about the offense and offender but also the statutory range ofpunishment and a calculation of the relevant sentencing guidelines (with a correspondingguideline sentencing range), as well as any bases that may exist for imposing a sentenceoutside of the applicable range.49 The defense and prosecution must be provided a copy ofthe PSR at least 35 days before sentencing and must submit any objections (factual or legalin nature) within 14 days and otherwise may respond to the PSR (typically in the form of asentencing memorandum).50 The PSR is a confidential document that may not be disclosedto the public and must be filed under seal.51 Together with a PSR, a probation officer alsosubmits to the court a confidential sentencing recommendation (which, unless the courtwishes to do so, need not be disclosed to the parties).52The Federal Bureau of Prisons (BOP) also uses the PSR, in determining the offender’s“classification as an inmate . . ., choosing an appropriate treatment program, [and] decidingeligibility for various programs.”53 Additionally, the PSR is used to inform the conditionsand methods of supervision of an offender on probation or supervised release.546

Federal Sentencing: The Basics – 2018D. Sentencing HearingAlthough not as formal as trial proceedings, federal sentencing hearings areadversarial proceedings governed by procedural rules contained primarily in Rule 32 ofthe Federal Rules of Criminal Procedure and Chapter Six of the Guidelines Manual. Adistrict court must allow the defendant and counsel for both parties—and, in appropriatecases, victims55—to provide input before a sentence is imposed.56 Furthermore, at thecourt’s discretion, it may allow the parties to call witnesses and present evidence aboutdisputed facts or other matters (e.g., mitigating or aggravating factors).57If a court is contemplating “departing” from the applicable guideline range, sufficientpresentence notice to the parties is required (whether from the court, in the PSR, or inpleadings). However, such specific presentence notice is not required if the court “varies,”rather than “departs,” from the applicable range based on information contained in thePSR or otherwise known to the parties.58 The difference between a “departure” and a“variance” is discussed in Part V.D. below.Neither the Federal Rules of Evidence59 nor constitutional provisions related toevidentiary matters (e.g., the Confrontation Clause of the Sixth Amendment) apply atsentencing.60 Therefore, the court may consider hearsay and other types of informationthat would not be admissible during a trial.61 However, the Commission has stated thatinformation considered by a court at sentencing must have “sufficient indicia of reliabilityto support its probable accuracy.”62 Under Federal Rule of Criminal Procedure 32, thecourt “must—for any disputed portion of the presentence report or other controvertedmatter—rule on the dispute or determine that a ruling is unnecessary either because thematter will not affect sentencing, or because the court will not consider the matter insentencing.”63 In resolving factual disputes, the court ordinarily applies the preponderanceof the evidence standard.64After the court orally pronounces sentence, the court must complete two documents—the “Judgment in a Criminal Case” and the “Statement of Reasons” (SOR) (both of whichare contained in AO Form 245B)—that memorialize what the judge orally pronouncedin court. The judgment specifies the sentence (the term of probation or imprisonment,any term of supervision release following imprisonment and the conditions thereof, andany financial penalties). The judgment is entered into the record as a publicly accessibledocument. The SOR, which in the vast majority of districts is a sealed part of the recordand thus is not publicly accessible, provides information about whether the court’s sentencewas within or outside of the applicable guideline range and also provides the specificreasons for a sentence imposed outside of that range (including whether the defendantprovided substantial assistance to the prosecution in the investigation or prosecution ofanother person).65At the conclusion of the sentencing hearing, the court must advise the defendant ofhis right to appeal, including the right to proceed in forma pauperis on appeal and theright to appointed appellate counsel in the event the defendant is indigent.66 A defendant7

United States Sentencing Commissionmay waive the right to appeal as part of a voluntary plea agreement, which will generallybe enforced on appeal (resulting in a dismissal of the appeal).67 Appellate review will bediscussed in Part VI below.Within 30 days of the entry of the written judgment in the record, the court must submitcopies of the judgment and SOR, along with the PSR, the charging document, and anyplea agreement, to the Sentencing Commission (in furtherance of the Commission’s datacollection and analysis duties).68 In most districts, the chief district judge has delegated thatresponsibility to the United States Probation Office.IV. The Nature of A Federal SentenceWhat follows is a discussion of the nature of a federal sentence in felony and Class Amisdemeanor cases69—first with respect to the statutory framework governing sentencingand then with respect to the guidelines framework.A. Types of Sentences Available by Statute1. Probation or PrisonThere are a variety of components of a federal sentence, one or more of which apply inevery case. The primary component—some form of deprivation of liberty, either probation orincarceration—is imposed in over 99 percent of cases.70 Where probation is authorized, themaximum term allowable is five years and, in the case of a felony offense, a minimum oneyear term is required.71 Various conditions of probation exist, including certain “mandatory”conditions (e.g., a defendant may not illegally possess a controlled substance) and a longlist of potential “discretionary” conditions, which must be “reasonably related” to the natureof the offense, the defendant’s history and characteristics, or the relevant purposes ofpunishment.72The majority of federal penal statutes do not require a term of imprisonment and,instead, authorize either a term of probation or a term of imprisonment. There are twoexceptions: (1) penal statutes carrying a mandatory minimum term of imprisonment73(unless one of two exceptions applies—a “substantial assistance” departure orapplication of the “safety valve”—which will be discussed in Part IV.A.2. below); and(2) penal statutes expressly prohibiting probation, even though they do not require impositionof a particular term of imprisonment.74 Federal penal statutes that provide for potentialterms of imprisonment are classified according to the maximum term available—rangingfrom Class A felonies (with a maximum punishment of life imprisonment) to Class E felonies(with maximum terms in excess of one year of imprisonment and not more than five years ofimprisonment), and Class A misdemeanors (with a maximum of one year of imprisonment)to Class C misdemeanors (with a maximum of 30 days of imprisonment).758

Federal Sentencing: The Basics – 2018Although the Sentencing Reform Act of 1984 prospectively abolished parole, federalprisoners may earn “good-time credit,” which can reduce an offender’s term of imprisonmentby up to 54 days for each year the offender has engaged in appropriate behavior in federalprison.76 In order to be eligible for such credit, an offender must receive a prison sentencein excess of 12 months.77 For that reason, it is not uncommon for courts impose a prisonsentence of 12 months and one day (which, with good-time credit, will result in an actualterm served of a little more than ten months).78In addition to allowing early release based on good-time credit, the BOP also mayallow offenders (other than deportable aliens and certain other classes of offenders) toserve the final portion of their sentences—up to 12 months—in a halfway house and/orin home detention (with a maximum period of six of the 12 months, or ten percent of theoffender’s sentence, whichever is less, in home detention).79 Eligible non-violent offenderswith substance abuse histories also may have their prison sentences reduced by up to oneyear (depending on the length of their sentences) if they successfully complete a 500-hourresidential drug abuse program (RDAP).80 Finally, the Director of the Bureau of Prisonsis authorized to request the sentencing court to release a prisoner before the end of hisor her term of imprisonment in limited situations related to the prisoner’s advanced age,terminal illness, or other “extraordinary and compelling” circumstances.812. Mandatory Minimum Sentences and Relief from ThemApproximately one-fifth of all federal defendants are convicted of an offense thatcarries a mandatory minimum prison sentence.82 Such offenses include drug-traffickingcrimes involving certain types and quantities of drugs, the use of a firearm during a crimeof violence or drug-trafficking offense, and a felon’s illegal possession of a firearm afterhaving been convicted of three violent felonies or serious drug-trafficking offenses.83 Increating sentencing guidelines applicable to such offenses, the Commission accounted forcongressionally-mandated minimum penalties in formulating corresponding sentencingguideline ranges.84There are two ways that a sentencing court can impose a sentence below an otherwiseapplicable statutory mandatory minimum: (1) if th

United States Sentencing Commission 4 in formulating the guidelines that should result in a sentence" outside of the applicable range.20 Departures from the range were limited in order to reflect Congress's desire for general uniformity in sentencing of similarly situated offenders, without consideration of